• Keyden Smith-Herold

Sec. Betsy DeVos is Helping to Restore Due Process

Photo: Alex Brandon | AP

Today, Secretary of Education Betsy DeVos proposed a major change to how colleges and universities must handle sexual misconduct allegations. The new rules scale back Obama era regulations and add new directives for schools on how to properly handle these accusations.

The changes “would require schools to apply basic due process protections for students”. This means that the presumption of innocence would be upheld to the highest standard, with the schools applying a higher burden of proof, requiring “clear and convincing evidence” to determine a student’s guilt.

New rules put forth by the department also require lawyers and advocates for an accused student to be allowed to cross-examine the accuser, something the Obama administration heavily discouraged. Schools will also now only be able to act if the alleged assault takes place on campus.

The single investigator model, where a single person investigates both a claim and its veracity will also be struck down. The department states that “after the recipient has conducted its impartial investigation, a separate decision-maker must reach the determination regarding responsibility”, and that “fundamental fairness to both parties requires [this]”.

The department also put out three guidelines (consistent with Supreme Court precedent and Title IX) for when a school must respond to sexual assault allegations: “(1) the school has actual knowledge of sexual harassment; (2) that [it] occurred within the school’s own ‘education program or activity’; (3) against a ‘person in the United States’”.

Under the new rules, a school is held liable if it is “‘deliberately indifferent’ to known sexual harassment, meaning its response is ‘clearly unreasonable in light of known circumstances’”.

These new rules also apply to K-12 schools, though schools for these specific grades are not required to have their peers cross-examine each other.

DeVos stated last year that these changes were coming, as the Obama administration’s new guidelines from 2011 did not adequately protect those being accused of sexual assault.

In the statement released today, DeVos states that “every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined”.

Opponents of these new regulations and standards state that DeVos and the Department of Education are removing rights and protections of the accusers, but this is simply not the case.

The department explicitly states that “the proposed regulation would require schools to investigate every formal complaint and to respond meaningfully to every known report of sexual harassment.”

However, we need clear and convincing evidence. In the era of sexual assault allegations that are often unsubstantiated and uncorroborated, it is extremely important to emphasize the need for credible evidence before an individual is prosecuted.

Democrats believe this is an action against women, but since when was having adequate due process sexist? The Obama administration simply swung the pendulum way too far in favor of the accuser, removing any fair judicial treatment of the accused.

Due process is a constitutional guarantee, and the principles of “innocent until proven guilty” and “the burden of proof is on the accuser” are fundamental for the success and fairness in our Judicial system.

Betsy DeVos and the department are completely correct for establishing these new guidelines. As the department states themselves, “[the guidelines] encourag[e] more students to turn to their schools for support in the wake of sexual harassment and reduce[s] the risk of improperly punishing students.”


Keyden Smith-Herold is the Founder and Editor-in-Chief of The Daily Analytical (dailyanalytical.com), a brand new publication, and the Chief Editor of Freedomists (freedomists.us)